Key legislation and terminology
Western Australia’s laws relating to withholding and withdrawing life-sustaining treatment and guardianship are contained in the Guardianship and Administration Act 1990 (WA) (the Act).
Treatment means medical or surgical treatment, including life-sustaining treatment and palliative care, or any other health care.
A treatment decision is a decision to consent or refuse consent to the commencement or continuation of any treatment of the person.
Substitute decision-making in Western Australia at the end of life
When will a substitute decision-maker be needed to make treatment and health care decisions for another person at the end of life?
A person is presumed to have capacity to make treatment and health care decisions. A person will no longer have capacity if they are unable to make reasonable judgments in relation to the proposed treatment. Where this occurs, and the person does not have an Advance Health Directive detailing their wishes about the proposed treatment, a substitute decision-maker may need to make the treatment decision on the person’s behalf. This situation may arise when a person nears the end of their life.
Find out more about Western Australia's laws on capacity at Capacity and consent to medical treatment.
Who can be a substitute decision-maker?
If the person without capacity has an Advance Health Directive giving a direction about the health care or treatment that direction must be followed.
If the person does not have an Advance Health Directive, the first person from the following list who is available, willing and able to act is the person’s substitute decision-maker (in order of priority):
- An Enduring Guardian appointed by the person under an Enduring Power of Guardianship. An Enduring Guardian must be over 18 years old and have full capacity. Information about how to make an Enduring Power of Guardianship is available from the Office of the Public Advocate.
- A guardian or guardians appointed by the State Administrative Tribunal of Western Australia (SAT). Anyone aged 18 or over who consents to being appointed as a guardian may be appointed so long as the SAT believes:
- the proposed guardian will act in the person's best interests;
- that the guardian’s interests will not conflict with the interests of the person; and
- they are a suitable person to act as a guardian.
A guardian will have different powers depending on whether they are appointed as a plenary or limited guardian. If there is no person willing, suitable or available who can act as a guardian, the Public Advocate may be appointed guardian. For more information visit the Office of the Public Advocate or the SAT.
- A default decision-maker, known as a person responsible. This will be the first person (aged over 18) from the following list (in order of priority):
- the person’s spouse or de facto partner if they are living together. Spouse means a person’s husband or wife in a legal marriage, while de facto partner is a person with whom they live in a marriage-like relationship (whether or not that person is of the same or a different sex).
- the person’s nearest relative who maintains a close personal relationship with him or her. In priority order:
- a spouse or de facto partner
- a child
- a parent
- a sibling.
- an unpaid primary provider of care and support (including emotional support) to the person.
- any other person who maintains a close personal relationship with the person (i.e. someone who has frequent personal contact (not a business or professional relationship) with the person, and takes a genuine interest in the person’s welfare).
If none of these people are available or suitable, the SAT may (on application) appoint a guardian.
The Western Australian Department of Health and Office of the Public Advocate have produced a useful flow chart of substitute decision-makers.
Substitute decision-making by Western Australia's guardianship bodies
What is the role of the Western Australia State Administrative Tribunal (SAT) in relation to decision-making at the end of life?
The SAT may be involved in many stages of the decision-making process, including providing directions to Enduring Guardians and guardians, determining who should make a treatment decision, and appointing or revoking a guardian or Enduring Guardian.
The SAT does not have power to refuse or withdraw consent to life-sustaining treatment, or to consent to treatment generally. But it does have a supervisory role in relation to ensuring a guardian is acting in a person’s best interests.
For example, if anyone is concerned about how the guardian is operating they can make an application to the SAT. The Tribunal can give directions about the exercise of guardianship or an Enduring Power of Guardianship. It can also make orders about the functions of guardians.
For more information about the Tribunal’s role visit the SAT.
What is the role of the Public Advocate in relation to decision-making at the end of life?
The Public Advocate is an independent office created under the Act. The Public Advocate can be appointed as guardian for a person who has lost capacity if no one else is suitable, willing and available. As guardian, the Public Advocate is often given authority to make treatment decisions.
For more information visit the Office of the Public Advocate.
Treatment decision-making by a substitute decision-maker
What treatment decisions can a substitute decision-maker make?
A substitute decision-maker with authority to make treatment decisions can make decisions about any treatment except sterilisation. These include decisions about consenting or refusing consent to the commencement or continuation of any treatment, and decisions about medical or surgical treatment or health care, including a life-sustaining measure or palliative care.
In the case of a guardian or Enduring Guardian however, the decisions which can be made will depend on the powers granted to the guardian by the SAT, or to the Enduring Guardian in an Enduring Power of Guardianship.
Where a guardian is a plenary guardian, they will have all the powers a parent would if the person with impaired capacity were their child. This means they will be able to make most medical treatment decisions for the person, including decisions about withholding and withdrawing life-sustaining treatment.
If a guardian is appointed to make a treatment decision (which includes a decision to consent or refuse consent), this power includes deciding whether or not the treatment is provided.
If a person is appointed a limited guardian they will only have the powers which are granted to them by the SAT.
How do substitute decision-makers make decisions?
When making a treatment decision a substitute decision-maker must act in the best interests of the person who has lost capacity.
The Act does not define ‘best interests’, but sets out criteria for when a guardian will be acting in the person’s best interests. This includes acting:
- as an advocate for the person who has lost capacity;
- in a way that protects the person from neglect, abuse or exploitation;
- in consultation with the person and taking his or her wishes into account;
- in the least restrictive manner; and
- in a way that maintains the supportive relationships and cultural, linguistic and religious environment of the person.
If an Enduring Guardian or guardian requires assistance in their role they can contact the Office of the Public Advocate.
Can health professionals withhold or withdraw treatment without the consent of a person’s substitute decision-maker?
A health professional is under no duty to treat a person (even if requested by a substitute decision-maker) if the treatment would be of no benefit, not in the person’s best interests, or futile. In this situation there is no obligation for a health professional to obtain consent to the withholding or withdrawing of such treatment (though, as a matter of practice they may wish to do so).
Find out more about the law on futile or non-beneficial treatment at Adult Treatment Decisions.
Emergency medical treatment
When can emergency treatment be provided, and is consent required?
If a person without capacity requires urgent treatment and it is not possible for a health professional to determine whether or not the person has an Advance Health Directive, or to obtain a decision from a substitute decision-maker, the health professional can provide the treatment without consent.
Urgent treatment includes treatment needed to save the person’s life, prevent serious damage to the person’s health, or to prevent the person suffering significant pain or distress.
A health professional will be responsible for determining if the treatment is urgent and what consent procedures need to be followed.
Where a person does not have capacity and a health professional reasonably suspects the person needs urgent treatment because of a suicide attempt, treatment may still be provided despite the person refusing it in their Advance Care Directive.
For more information about emergency treatment visit Capacity and consent to medical treatment.
Complaints and dispute resolution
Treatment decision-making at the end of life can be a very challenging and emotional time for a person, their family and friends, substitute decision-makers and health professionals. Sometimes disagreements or concerns arise about decision-making for the person.
If anyone (including a health professional) is concerned about a substitute decision-maker, disagrees with the decisions being made, or a decision cannot be reached about care and treatment, a person can apply to the SAT to review, amend or revoke the guardianship order or Enduring Power of Guardianship, or seek directions. The Supreme Court also has power to hear disputes about end of life treatment.
Where a person or their family or carer is concerned about a worrying change in a person's health condition while they are in a public hospital they may access the CARE system. This system is not for general complaints or concerns about care received while in hospital, It is a process to encourage individuals to engage with their treating team if they are concerned something is not right, and to request a clinical review. Find out more about CARE.